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On January 08, 2010, The CIS unilaterally, and through a memo banned the practice in many industries notably the IT and health care industry of assigning H-1B workers to third party sites. They said that the petitioning employer should “control” the beneficiary, and can only send beneficiaries to an end user client. Yes, its unfair, stupid, bad law, bad lawmaking. My previous blogs deals with this.

But how have these rules been implemented? We are finding that many officers are using that memo to deny cases, even when a consulting company sends the beneficiary to an end user. Government employees, unable to get into complex reasoning, has reduced the memo in practice to: 1. We see a Consulting Company2. We have to deny (after all our bosses gave us all these beautiful write up for the denial letters based on the memo that we copy and paste to each denial)3. Find whatever language we can find and say this shows “no control.”

We had one case where the Consulting company had a contract with an end user Company. We provided all types of document, including the contract, the statement of work, documents showing payments from the end user company to the consulting company. The officer cited this one line in the contract to state that this end user company was NOT an end user: “Whereas [End user company] is in the business of providing Open Source solutions to its enterprise clients…” The end user Company creates software in house for their clients. Why would a Company create software if nobody buys that software from them?

In our case the individual was an H-1B extension, lived and worked here for 6 years and had filed the labor certification and I-140. Although you can appeal that denial, the appeal does not give him status. So he has to either convert to F-1 status or go back to India. The work of course will suffer.

The one party Health Care bill was signed into law today. Although I applaud Mr. Obama’s attempt to work in a bipartisan manner, he should have slowed down the process to concede to the republican demands. He refused to compromise with the republicans, courted the democrats and rammed a bill down the throats of an unwilling population. That is NOT democracy. What will happen to that health care bill is that Republicans will file a court challenge to it. The conservative Supreme Court will declare it unconstitutional. In the meantime, in October the make up of the Senate and House will change. And the health care issue will die.

Our Separation of Powers works if the legislative majority and the Executive are not of the same party. With a single party holding swing over the Executive and Legislature the checks and balances are gone.

Yet probably unlike health care, Immigration can be bipartisan. There were at least two bills jointly put forward by a Republican and a Democrat. And former president Bush wanted immigration reform as much as President Obama does. Yet the parameters are different for different parties. The democrats want to legalize the undocumented aliens who are illegally here. They do mainly manual jobs, work hard, and are necessary for the country. However the democrats frown upon the intellectual jobs being done by mostly Indian and Chinese professionals, who are here legally on H-1B visas, giving into protectionist labor organizations.The H-1B visas have been attached ever since Mr. Obama took office. First there were the workplace raids, whose main purpose was to see if businesses were following the letter of the law minutely. Then came the January 08 memo, which virtually ended consulting companies (mainly IT companies) ability to hire foreign nationals on H-1B. These people are legal, have valid visas and work in professional jobs. They too are necessary for the American economy. American colleges do not generate a high volume of Computer Professionals necessary to keep American businesses going. The Republicans support these work visas, the democrats don’t.

Comprehensive Immigration Reform has to be COMPREHENSIVE. Just as health care bill did not include provisions to curb tort lawyers, an Immigration bill which only addresses the illegal immigrants supplying manual labor and not the legal immigrants supplying intellectual labor is simply unacceptable.

The USCIS charges a hefty ACWIA fee for each H-1B petition filed. The fee is either $1500 (for employers having more than 25 employees) or $750 (if the employer has less than 25 employees). The rationale behind these fees is that the Government will use this money to teach American workers to do the job. But of course this money goes into that deep dark hole called the Government.

But America could easily train its students to perform at a much higher rate by spending NO money.

1. Create an atmosphere where education is held to a higher respect than sports or cheer leading. The only March madness that all other countries worry about are those big fat college acceptance letters showing up on students’ mailboxes.

2. Make College acceptances more fair. The “Holistic” approach that Colleges apply to “Judge” students is arbitrary and fraudulent. I am not saying that students should be bookworms or nerds and not do extracurricular. But the main determinant for getting into colleges should be grades and SATs. There is no way to judge if a piano player is better than a violin player, or a person with XYZ community service is better than one with ABC community service. Students routinely build their resumes with fluff to satisfy the colleges, a time better spent in studying and doing something they enjoy to develop themselves, rather than conforming to a set of rules dictated by colleges. In India, Engineering and Medical School acceptances are blind, based on only scores of a very hard standardized exam. It is true that it is much harder to get into IIT than to Harvard. And if these students want to come over to the US because of higher pay, why blame them? The US ultimately profits.

3. Do away with Legacy acceptances. That is nothing short of white, privileged people (like former pres George W Bush) preserving the college acceptances for their worthless kids. Many parents of today’s college age kids entered college before there was the SATs. College acceptances in those days was based on color and lineage. These people then want their kids to enter their alma mater. The legacy kids are generally academically inferior and walk around with a sense of entitlement. Yet better students do not get in. In fact Princeton was sued by an Asian male recently for discrimination. Likewise affirmative action should be means dependent rather than color dependent. The economically poor do not get the same opportunity as the richer kids in terms of college preparedness and should be given an advantage to level the plain field.

Of course there is no legal way to make private colleges fair other than to cut out their Governmental research funding and thereby diminishing their US News And World Report rank. If America cannot give the very best education to deserving students and create professional workers, we have to import them from countries like India. And how does India, a poor country produce so many professionals?

There are 65,000 general plus 20,000 US Master’s Degree holder H-1B visa given annually. The Government’s fiscal year starts on October, and they begin taking applications 6 months before that. Thus the CIS announced that for the fiscal year 2011, they will begin accepting H-1B applications from April 01, 2010.

In recent years, ie 2007 and 2008, there were more than 100,000 petitions filed on April 01. The CIS held a lottery and only the lucky 65K plus 20K got in. This created a myth amongst employers that they have to file on April 01, or they will not get in. However that is not the case. The CIS will continue to accept applications until the H-1B quota is finished. Last year, in 2009 (for the fiscal year 2010) the quota was finished on December 21, 2009. They started accepting applications on April 01, 2009. That was because the economic downturn and US unemployment reduced the need for hiring new employees, especially H-1B employees who are expensive. The high unemployment rates still continues. In addition the January 08, 2010 memo by CIS effectively killed the IT industry sponsorship, and IT was the biggest user of H-1B visas. Thus, the H-1B quota finishing on April 01 this year is extremely unlikely.

Additionally, the Labor Condition Application, a precondition to filing the H-1B application which used to be instant this time last year, is taking about 2-3 weeks, thanks to an incompetent labor department.

Also the Request for Additional Evidence from the CIS for H-1B has increased exponentially. Thus we are taking our time to gather a ton of documents and present a water tight case to the CIS, instead of rushing to file the H-1B petition on April 01, 2010.

In the Matter of UMG Logistics today, Balca denied the case because they felt that knowledge of Spanish is not necessary for a truck driver who will deliver goods exclusively to a small community in Mexico. Balca said that the employer merely asserted that Spanish is required without giving evidence for it. Come on Balca and DOl, we all live in the US. We have all visited Mexico. Ok, maybe you have only visited Cancun, but surely you know a Mexican person whose English is not quite great. It does not take a genius to realize that you cannot do business in interior of Mexico without knowing Spanish.

Similarly, I was given a Request for Evidence (RFE) in a National Interest Waiver Case, asking me to prove that breast cancer research is National in scope and not local. We had to actually give National Statistics to prove that breast cancer is National.

But then, we never hired Federal workers for their ability to think and rationalize.